People v. Gordon ( 2023 )

2023 IL App (5th) 220707-UNOTICE
NOTICE
Decision filed 08/11/23. The
This order was filed under
text of this decision may be NO. 5-22-0707
Supreme Court Rule 23 and is
changed or corrected prior to
the filing of a Petition for not precedent except in the
Rehearing or the disposition of
IN THE limited circumstances allowed
the same. under Rule 23(e)(1).
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Macon County.
)
v. ) No. 21-CF-1535
)
CORNELIUS D. GORDON, ) Honorable
) Jeffrey S. Geisler,
Defendant-Appellant. ) Judge, presiding.
______________________________________________________________________________
JUSTICE McHANEY delivered the judgment of the court.
Justices Moore and Barberis concurred in the judgment.
ORDER
¶1 Held: Where a review of the complete record establishes that the trial court substantially
complied with Illinois Supreme Court Rule 401(a) (eff. July 1, 1984), the
defendant’s conviction and sentence are affirmed.
¶2 On December 13, 2021, the defendant was charged by information in Macon County with
the following four counts in case No. 21-CF-1535: count I (armed violence), count II (armed
habitual criminal), count III (unlawful possession of a controlled substance with intent to deliver),
and count IV (aggravated fleeing or attempting to elude an officer). On February 9, 2022, an
additional count V was filed (armed violence). The defendant also had pending case No. 21-CF-
819, which charged him with residential burglary and possession of a stolen vehicle. After several
court appearances where the defendant was represented by counsel, he elected to proceed pro se.
Illinois Supreme Court Rule 401(a) admonishments were given. Multiple motion hearings were
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held, and a jury trial commenced. The State elected to proceed only on counts II and IV in 21-CF-
1535, armed habitual criminal (720 ILCS 5/24-1.7(a) (West 2020)) and aggravated fleeing and
eluding or attempting to elude an officer (625 ILCS 5/11-204.1(a)(1) (West 2020)). The jury
convicted the defendant on both counts. He was sentenced to 20 years in the Illinois Department
of Corrections (IDOC) on count II and 3 years IDOC on count IV, to be served concurrently. For
the following reasons, we affirm the convictions and sentence.
¶3 I. Background
¶4 On December 14, 2021, defendant appeared in open court for his arraignment on the four-
count information in 21-CF-1535 and requested time to hire an attorney. The defendant was given
a copy of the information and advised of the nature of the charges. On December 28, 2021, the
defendant appeared, and the public defender was appointed. A preliminary hearing was set for
January 19, 2022. On that date, the defendant was in quarantine and unable to be present, so the
preliminary hearing was continued to February 9, 2022.
¶5 On February 9, 2022, the defendant appeared with counsel. On that date, the State added
count V (armed violence) (720 ILCS 5/33A-2(a), 33A-3(a) (West 2008)) to 21-CF-1535 and
dismissed count I, which was the same charge under a different theory. The public defender
indicated that the defendant was given a copy of count V. The preliminary hearing was held, and
the trial court found probable cause. The public defender waived formal arraignment on behalf of
her client. On February 28, 2022, the defendant appeared with counsel, and the case was continued.
On March 28, 2022, the defendant filed a pro se “Motion for Discovery,” a “Writ for Habeas
Corpus,” and a “Motion To Withdrawl [sic]” “Counsel for Ineffective Assistance.” On April 4,
2022, defense counsel informed the court that the defendant also wrote a letter to her, indicating
he wanted to proceed pro se.
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¶6 On April 11, 2022, the defendant appeared with his attorney regarding his motion to waive
counsel. The trial court began by reciting all the charges in both 21-CF-819 and 21-CF-1535,
including the minimum and maximum sentences for each count. Specifically, the defendant was
informed that in 21-CF-819, count I was nonprobationable, and he was extended-term eligible,
making his sentencing range 4 to 30 years in IDOC. Count II was probationable, and he was
extended-term eligible, with a possible sentencing range of 3 to 14 years in IDOC. The trial court
stated that if convicted of both, 21-CF-819 and 21-CF-1535, it was mandatory that they be served
consecutively. At this point, the assistant state’s attorney reminded the trial court that counts I and
III in 21-CF-1535 had been dismissed. The trial court then informed the defendant that count II
was a Class X, nonprobationable offense, and he was extended-term eligible, making his
sentencing range 6 to 60 years in IDOC, served at 85%. Count IV was probationable, and due to
the defendant’s extended-term eligibility, the sentencing range was 1 to 6 years in IDOC. The trial
court continued by stating that count V was nonprobationable, and due to the defendant’s
extended-term eligibility the sentencing range was 15 to 60 years in IDOC. The defendant was
advised of potential fines and mandatory supervisory release periods on each count in both cases.
¶7 The trial court then admonished the defendant on his right to counsel, appointed or hired,
and his right to proceed pro se. The trial court inquired about the defendant’s age, his highest level
of education, and if he had ever proceeded pro se before. The defendant responded that in 2012 he
proceeded on a case pro se. The defendant was advised of the potential dangers of proceeding
pro se and warned that he would not receive any special treatment due to his choice. The assistant
state’s attorney apprised the trial court of the status of an offer for resolution in detail, and the
defendant confirmed he was rejecting that offer. The defendant then asked the trial court about
some discovery issues and his speedy trial rights, both of which were clearly explained. After the
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defendant signed a “Written Waiver of Counsel” form, which mirrored Rule 401(a)
admonishments, the trial court granted the defendant’s request to proceed pro se and cautioned
him again, stating he was “facing extremely serious charges.” A status hearing and jury trial date
were set.
¶8 On April 22, 2022, the defendant appeared, pro se, for a status hearing and indicated that
discovery was complete. His request for appointment of stand-by counsel was denied. Lastly, he
made a “verbal motion to dismiss for failure to prosecute in my 120 days pretrial.” The trial court
responded that the motion had to be in writing, and he was reminded that the jury trial was set.
Another status hearing was scheduled for May 5, 2022. On that date, the defendant’s written
motion to dismiss was argued and denied. The defendant also recited some issues with the
discovery, indicating he would file a motion to suppress. Another status hearing was set for May
24, 2022.
¶9 On May 24, 2022, the defendant appeared and stated he was ready for trial but had a motion
to suppress with him. The trial court set another status hearing for June 7, 2022, to allow the
defendant time to file any motions he wanted heard. At that next status hearing, the trial court set
the defendant’s motion to suppress and motion for pretrial discovery for hearing on July 12, 2022.
¶ 10 On July 12, 2022, the trial court held a hearing on the defendant’s pending motions. The
defendant made lengthy arguments but did not present any evidence. However, the record does
show the defendant attempted to subpoena witnesses. The assistant state’s attorney responded that
even if the statements in defendant’s motion to suppress were taken as true, because the initial
traffic stop was still valid, the defendant’s motion should be denied. The trial court denied the
motion to suppress and found that the State was in compliance with all discovery rules. Finally, a
motion to reduce bond was heard. The State noted that the defendant accurately stated the law.
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Because there was no change of circumstances and due to the defendant’s prior criminal history,
the trial court denied the motion to reduce bond. Another status hearing was set for August 17,
2022.
¶ 11 On August 17, 2022, the defendant presented another “Motion to Dismiss the Charges”
and made the following statement:
“THE DEFENDANT: I have did additional research and my cases do not
follow—fit the Armed Habitual Criminal Act because a—my Unlawful Possession
of a Weapon is not an aggravated unlawful of weapon. But I have been charged
with a drug charge, but I haven’t been charged more than two times. So, therefore,
to be charged under the Armed Habitual Act they say you have to have two or more
charges. I only got one charge on there that fits the criteria of armed habitual.”
The trial court also heard a “Motion for Bill of Particulars” where the defendant claimed the State
did not produce adequate information on the armed habitual criminal statute so that he could
adequately defend himself. The following exchange occurred:
“THE COURT: *** What is it that you don’t understand in the charge?
THE DEFENDANT: First of all, I don’t understand how I’m being charged with
Armed Habitual when the weapon was never found on me. Also, as I stated that,
my DNA or fingerprints not on there. And that they found the weapon on the side
of the passenger, whom they failed a—to even a—arrest or do anything towards
him.
THE COURT: Okay. Then as to the Motion for Bill of Particulars I am going to
deny that. What you’re, basically, arguing is an evidentiary issue and understand
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what you’re stating. That really is not a Motion for Bill of Particulars. That is
discretionary with the Court.
If you don’t understand what you’re charged with that’s one thing. I think you
understand what you charged with. You’re saying there’s evidentiary issues and
that will come up in the jury trial. So, as to that I am going to deny the Motion for
Bill of Particulars.”
¶ 12 On August 19, 2022, the trial court held another status hearing where the defendant asserted
he had “extensively” researched the armed habitual criminal statute and repeated his concerns with
the charge.
¶ 13 On August 22, 2022, the jury trial commenced. Outside the presence of the jury, the State
provided the defendant with a copy of the statute defining the offense of armed habitual criminal,
and the trial court explained to the defendant how his prior convictions fit the criteria of the statute.
The State then moved to dismiss count V, electing to proceed only on counts II and IV. The trial
court again inquired about the status of an offer, which the defendant refused, stating: “if they not
talking about probation sir, no sir.” The jury trial proceeded over the course of two days, during
which the defendant made numerous objections and arguments as a pro se litigant. At the
conclusion of the jury trial, the defendant was convicted of both counts.
¶ 14 On October 13, 2022, the trial court heard arguments on the defendant’s posttrial motions:
“Motion for a New Trial,” “Motion for Judgment of Acquittal,” “Motion to Arrest Judgment,” and
“Motion to Dismiss Charges,” which motions included caselaw. The court denied all the motions
and proceeded to sentencing.
¶15 A presentence investigation report (PSI) was submitted to the trial court, which included
the defendant’s prior criminal history. The PSI detailed five prior felony convictions, which
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resulted in the defendant being sentenced to a decade or more of imprisonment, and an extensive
list of misdemeanors and probation violations. The trial court sentenced the defendant to
concurrent sentences of 20 years in IDOC on count II and 3 years in IDOC on count IV. The
defendant filed a timely notice of appeal.
¶ 16 II. Analysis
¶ 17 The defendant argues that the trial court admonishments at the time he waived his right to
counsel failed to comply with Illinois Supreme Court Rule 401(a).
¶ 18 “The sixth amendment to the United States Constitution (U.S. Const., amend VI)
guarantees an accused in a criminal proceeding both the right to the assistance of counsel and the
correlative right to proceed without counsel.” People v. Wright, 2017 IL 119561, ¶ 39. Because
the right of self-representation is as basic and fundamental as the right to counsel, defendant may
waive his constitutional right to counsel as long as that waiver is voluntary, knowing, and
intelligent. People v. Haynes, 174 Ill. 2d 204, 235 (1996). Illinois Supreme Court Rule 401(a) sets
forth the required admonishments for waiver of counsel. “[T]he interpretation of a supreme court
rule is a question of law that we review de novo.” People v. Campbell, 224 Ill. 2d 80, 84 (2006).
¶ 19 Illinois Supreme Court Rule 401(a) provides:
“(a) Waiver of Counsel. Any waiver of counsel shall be in open court. The court
shall not permit a waiver of counsel by a person accused of an offense punishable
by imprisonment without first, by addressing the defendant personally in open
court, informing him of and determining that he understands the following:
(1) the nature of the charge;
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(2) the minimum and maximum sentence prescribed by law, including,
when applicable, the penalty to which the defendant may be subjected
because of prior convictions or consecutive sentences; and
(3) that he has a right to counsel, and if he is indigent, to have counsel
appointed for him by the court.” Ill. S. Ct. R. 401(a) (eff. July 1, 1984).
Strict compliance with Rule 401(a) is not required. “[S]ubstantial compliance will be sufficient to
effectuate a valid waiver if the record indicates that the waiver was otherwise made knowingly,
intelligently, and voluntarily, and the admonishments the defendant received did not prejudice his
rights.” People v. Jiles, 364 Ill. App. 3d 320, 329 (2006). A reviewing court will look “to the
overall context of the proceedings, including the defendant’s conduct following the defendant’s
request to represent himself.” (Internal quotation marks omitted.) People v. Ware, 407 Ill. App. 3d
315, 340 (2011).
¶ 20 The defendant argues that on April 11, 2022, when he waived counsel, the trial court simply
read the counts in the information without any further explanation of the nature of the charges. In
support of his argument, the defendant relies on People v. Jiles, which notes that “Rule 401(a)
admonishments must be provided at the time the court learns that a defendant chooses to waive
counsel, so that the defendant can consider the ramifications of such a decision.” Jiles, 364 Ill.
App. 3d at 329. However, the court in Jiles also noted that “substantial compliance will be
sufficient to effectuate a valid waiver if the record indicates that the waiver was otherwise made
knowingly, intelligently, and voluntarily, and the admonishments the defendant received did not
prejudice his rights.” Id. The right to waive counsel is fundamental, and because of the gravity of
the circumstance, each case “must be evaluated on its own particular set of facts.” Wright, 2017
IL 119561, ¶ 54.
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¶ 21 The docket entry dated December 14, 2021, which was the defendant’s first appearance,
states: “Defendant present in custody, tendered copy of the Information, and advised as to the
nature of the charges and possible penalties.” When reviewing a docket entry, “[w]e must presume
the common-law record is correct.” People v. Martinez, 361 Ill. App. 3d 424, 427 (2005); see
People v. Durr, 215 Ill. 2d 283, 306 (2005) (“the common law record imports verity and is
presumed correct”). Only where a conflict between the common-law record and report of
proceedings exists will the report of proceedings prevail. Id. Here, similar to Martinez, there is no
report of proceedings for the December 14, 2021, court appearance. Accordingly, we must
presume that the common-law record is correct. Therefore, we find that the defendant was
adequately admonished of the nature of the charges and possible penalties on December 14, 2021.
Additionally, on February 9, 2022, the defendant was present and heard extensive testimony during
the preliminary hearing. On that same date, the defendant was handed a copy of the amended
information, which added count V. On March 28, 2022, the defendant began filing his pro se
motions and ultimately waived his right to counsel on April 11, 2022. The defendant also cogently
argued several motions, before ultimately proceeding to a jury trial pro se.
¶ 22 “Substantial compliance occurs when any failure to fully provide admonishments does not
prejudice defendant because either: (1) the absence of a detail from the admonishments did not
impede defendant from giving a knowing and intelligent waiver or (2) defendant possessed a
degree of knowledge or sophistication that excused the lack of admonition.” People v. Pike, 2016
IL App (1st) 122626, ¶ 112. An otherwise inadequate admonition may be constitutionally
sufficient, and therefore does not constitute error, if the absence of a detail did not impede the
defendant from giving a knowing and intelligent waiver. People v. Black, 2011 IL App (5th)
080089, ¶ 20. In deciding whether a defendant’s waiver of counsel was valid, the dispositive issue
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is whether the waiver of counsel was made knowingly, understandingly, and effectively in light of
the entire record. People v. Gilkey, 263 Ill. App. 3d 706, 711 (1994).
¶ 23 Here, the defendant actively participated in 13 pro se pretrial hearings and never wavered
on his desire to represent himself. The only reasons even given by the defendant for his desire to
represent himself were related to his speedy trial rights and the lack of a probation offer. The
defendant filed 12 pro se pretrial and 9 pro se posttrial motions, argued them all, and referenced
his “extensive research” with respect to the motions. Given the defendant’s lengthy criminal
history and his prior pro se experience, coupled with his pro se experience here, we find that the
defendant’s familiarity with the legal process establishes that the defendant possessed the degree
of knowledge or sophistication that excused the lack of a complete Rule 401(a) admonishment by
the trial court. Pike, 2016 IL App (1st) 122626, ¶ 112. Accordingly, after reviewing the entire
record, we conclude that the trial court substantially complied with Rule 401(a).
¶ 24 The defendant next argues that the trial court’s admonishments were insufficient to satisfy
Rule 401(a) because the defendant was incorrectly advised that the maximum sentence he could
receive on the armed habitual criminal charge (count II) was 60 years. The defendant maintains
that because the State used the defendant’s prior felony conviction as a predicate offense for the
charge of armed habitual criminal, it was precluded from using that same conviction to impose an
extended-term sentence. Therefore, the maximum sentence for count II was 30 years, not 60.
However, the defendant was admonished that the maximum sentence he could receive on count V
(armed violence) was 60 years. We find People v. Coleman, 129 Ill. 2d 321 (1989), and People v.
Johnson, 119 Ill. 2d 119 (1987), to be instructive. The court in People v. Coleman reasoned that:
“Where a defendant knows the nature of the charges against him and understands that as a result
of those charges he may receive the death penalty, his knowledge and understanding that he may
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be eligible to receive a lesser sentence pales in comparison.” Coleman, 129 Ill. 2d at 334. Likewise,
in People v. Johnson, the court upheld a waiver of counsel and found substantial compliance with
Rule 401(a) despite the fact that the trial court failed to specifically advise the defendant that he
faced a mandatory minimum sentence of life imprisonment. Johnson, 119 Ill. 2d at 131-32. Here,
as in Coleman and Johnson, the erroneous sentencing admonishment did not invalidate the
defendant’s waiver of counsel. Analogously, the defendant was fully aware that the sentencing
range for armed violence (count V) was substantially longer than the sentencing range he faced
for armed habitual criminal (count II). Given that, the importance of the defendant having specific
knowledge that the maximum sentence he faced for armed habitual criminal (count II) was 30
years less than the maximum sentence he faced in count V clearly “pales in comparison.” Coleman,
129 Ill. 2d at 334. Accordingly, we find that the trial court’s admonishments, despite the incorrect
sentencing range for armed habitual criminal, substantially complied with Rule 401(a).
¶ 25 III. Conclusion
¶ 26 For the above reasons, we find that the trial court substantially complied with Illinois
Supreme Court Rule 401(a). Accordingly, the defendant’s conviction and sentence are affirmed.
¶ 27 Affirmed.
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